Wetland dispute continues after governor's veto Doug Smith, Star Tribune
June 13, 2004 DOUG13
To conservation groups and the Department of Natural Resources, the 24-year controversial battle over the little wetland in Nicollet County is a righteous one, worth fighting to protect the state's vanishing wetlands and to uphold a law preventing their drainage.

But to the land-owning farm family and their supporters -- including several state legislators -- the DNR's actions are misguided, unfair and an attack on their property rights.

Two things are certain: The bitter dispute shows no sign of resolution. And there appears to be no middle ground.

The latest chapter in the saga was written earlier this month when Gov. Tim Pawlenty vetoed a claim approved by the Legislature that would have ended the dispute. Landowners Judy and Linda Bode would have received $27,000 for damages stemming from the DNR's destruction of a tile drainage system at the wetland a decade ago -- action taken under a court order to restore the wetland.

It was the second time in two years that Pawlenty has vetoed a settlement of the case OK'd by the House-Senate Claims Subcommittee, comprised of three Republicans and three DFLers. The governor said the courts have consistently ruled in favor of the state on the case and to pay the claim would be setting a "troubling precedent."

The Nicollet Conservation Club and the Fish and Wildlife Legislative Alliance agreed, saying it would encourage others to drain protected wetlands, which provide key wildlife habitat.

But the subcommittee's continued support for the Bodes' position -- three different subcommittees have approved their claim unanimously three times -- is bipartisan and based on an objective study of the case, say Rep. Bruce Anderson, R-Buffalo, and Sen. Wes Skoglund, DFL-Minneapolis, both subcommittee members.

They support the Bodes' contention that the wetland isn't large enough to fall under state jurisdiction and thus a state law prohibiting its drainage. And they say Pawlenty apparently doesn't understand the complex case and is getting bad advice from the DNR, which has opposed the Bodes' claims.

"We feel it's a total injustice what has been done to them," said Anderson. "We're fighting for what we think is right. The governor is only seeing one side of the issue."

Said Skoglund: "I don't believe in draining wetlands. If it was up to me, there would be no drainage allowed. Zero. But that's not the law. I think the DNR made a big mistake, and they have spent hundreds of thousands of dollars trying to cover up their mistake."

But Mark Holsten, DNR deputy commissioner and former legislator, said he has reviewed the long history of the case -- including numerous court rulings in favor of the DNR -- and is satisfied with the agency's position. The DNR is simply trying to comply with the law, he said.

Said Kent Lokkesmoe of the DNR's Waters Division: "We believe this is a properly identified wetland."

Complex case

The heart of the dispute is whether the Bode's wetland exceeds 10 acres. If so, it is protected from drainage by state law. There are two potholes in the disputed area, one on the Bodes' land and another on an adjacent farmer's property. The DNR, since 1980, has insisted both comprise one wetland of about 25 acres.

But the Bodes and a hydrologist they hired say there are two distinct wetlands separated by a strip of land. And the Bodes' is less than 10 acres, meaning they should be able to legally drain it. The family installed drain tile in 1981 while the issue was still in court; the DNR has twice gone in to disable it but says the wetland was never completely restored.

In recent years, it has been dry.

A key ruling came in 1986 when a District Court judge ruled that the wetland clearly exceeded 10 acres, but the judge didn't address whether the Bode portion should be considered separate, saying that issue "must yet be addressed and resolved."

Though there have been numerous court decisions over the years -- the case has gone all the way to the state Supreme Court -- that key issue has never been decided by a court.

"Despite many years of litigation over technicalities, the Bodes have never received a trial on the merits," said Ron Peterson, a hydrologist from Mendota Heights who owns an environmental consulting firm and was hired by the Bodes in 1994.

He determined that the DNR had erroneously designated the Bode wetland as exceeding 10 acres because it based its decision on an aerial photo taken in 1968 -- the second wettest on record for Nicollet County. Under normal conditions, the Bode wetland would comprise about 6.7 acres, he said.

But Lokkesmoe insists the DNR looked at other evidence, and that there is only one wetland. And it should be protected.

Though Peterson hasn't worked for the Bodes since 1997, he has continued to send letters of support to legislators and the governor. "I feel strongly that they [Bodes] have been unfairly treated," he said.

Legislators on the claims subcommittee have examined the issue and several have visited the disputed land, Peterson noted.

"A group of objective legislators saw it with their own eyes and made a decision, and [it] was vetoed by a governor who wouldn't even come out and look at it," he said. "It's pretty frustrating."

Compromise rejected

Last year, the Legislature's claims bill included the Bode claim, which would have paid them $26,000 from DNR funds and declared their wetland smaller than 10 acres, essentially giving them total victory.

Pawlenty, at the DNR's urging, vetoed it.

This year, the subcommittee tried to make the claim more palatable to Pawlenty and the DNR. Payment was to come from the state's general fund, rather than the DNR. And, as part of the deal, the case was to go before an administrative law judge to determine, once and for all, whether the Bodes' land should be included in the wetland designation.

The DNR again opposed the claim. One concern, Lokkesmoe said, was whether the judge would look at today's dry conditions or determine wetland status based on the historical perspective.

"I think they were afraid a neutral party would show they were wrong," said Skoglund.

Both sides expect the Bode claim to resurface next year. Lokkesmoe said the DNR has no immediate plans to go in and restore the wetland.

Meanwhile, the Bodes weren't talking last week about the governor's latest veto of their claim. But last year Judy Bode expressed the sisters' sentiments:

"We continue this fight because my family was served a great injustice."